Law Times

Page 14 OctOber 20, 2014 • Law Times www.lawtimesnews.com SUPREME COURT OF CANADA Aboriginal Peoples LAND CLAIMS Province's land use planning and forestry authorizations inconsistent with duties owed to Tsilhqot'in Tsilhqot'in Nation, semi-no- madic group of bands with un- resolved land claims, objected when B.C. granted commercial logging licence on land con- sidered part of Tsilhqot'in tra- ditional territory. Tsilhqot'in original land claim amended to include claim for Aboriginal title to land at issue. Supreme Court of British Columbia held that Tsilhqot'in claim not estab- lished, but Tsilhqot'in's appeal allowed. To ground Aboriginal title, in sense of regular and ex- clusive use, requires sufficient, continuous and exclusive oc- cupation. Analysis of Aborigi- nal culture and practices deter- mines whether group exercised effective control at time of assertion of European sover- eignty. Specific, intensively oc- cupied areas need not be estab- lished; sufficient that impugned parts of land regularly used by Tsilhqot'in and that Tsilhqot'in repelled other people from land. Evidence supported finding that Tsilhqot'in treated land as exclu- sively theirs. Prior to establish- ment of title, Crown must con- sult in good faith, with Aborigi- nal groups asserting title, about proposed uses and may also be required to accommodate interests of claimant groups. Strength of claim and serious- ness of potentially adverse ef- fect upon interest claimed will determine level of consultation and accommodation required. Once Aboriginal title estab- lished, Crown, in addition to complying with procedural du- ties, must justify any incursions. Proposed government action must be consistent with s. 35 of Constitution Act, 1982 ("CA"), which requires compelling and substantial governmental objective that government ac- tion be consistent with Crown's fiduciary duty to Aboriginal group. Province breached duty to Tsilhqot'in by failing to con- sult and failing to accommodate their interests. Forest Act (B.C.) ("FA"), provincial law of general application applies, on its face, to Aboriginal title land, subject to constraints of s. 35 of CA, and division of powers. Now that Aboriginal title established, however, FA no longer applies as timber no longer falls within definition of "Crown timber". Issuance of timber licences, direct transfer of Aboriginal property rights to third party, constitutes meaningful dimi- nution in Aboriginal group's ownership right which Crown was required to justify. Doctrine of interjurisdictional immunity ousted by s. 35 framework as tension between Aboriginal title holders and province, not two levels of government. Province's land use planning and forestry authorizations under Forest Act inconsistent with its duties owed to Tsilhqot'in. Xeni Gwet' in First Nations v. British Columbia (Jun. 26, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Kara- katsanis J., and Wagner J., File No. 34986) Decision at 217 A.C.W.S. (3d) 1 was reversed. 241 A.C.W.S. (3d) 2. FEDERAL COURT Immigration REFUGEE STATUS Applicants faced risk more serious than that faced by average Honduran Applicants were citizens of Hon- duras and they claimed they feared criminal gang. Appli- cants' family owned prosperous clothing business and principal applicant owned two other busi- nesses. Applicants claimed that they were repeatedly threatened by gang. Principal applicant's wife was abducted at gun point. Police officer was involved. Ap- plicants made claim for refugee protection. Board concluded that applicants, as victims of crime, did not fear persecu- tion under one of convention grounds and claim under s. 96 of Immigration and Refugee Protection Act (Can.), failed. Board found that applicants did not face personalized risk un- der s. 97(1)(b) of Act since other citizens of Honduras who were economically successful faced threat of extortion. Applicants' claim for refugee protection was refused. Applicants applied for judicial review. Application granted. It was crucial to con- duct individualized inquiry as to nature of risk faced by ap- plicants before determining whether risk was one that was prevalent or widespread in that country. It was not sufficient to conclude that risk of criminal activity encountered by person was generalized because popu- lation at large or important seg- ment of population was subject to same risk. Instead of focusing on fact that wealthy people were frequently targeted by gang in Honduras, board should have looked to applicants' particular situation. Applicants were not simply at risk of theft and ex- tortion because they were suc- cessful, but were also repeatedly threatened, shot at and subject to kidnapping attempts. Ap- plicants faced risk more serious than that faced by average Hon- duran. Board's decision was unreasonable because it did not properly conduct required indi- vidualized inquiry. X, Re (Jun. 5, 2014, F.C., Yves de Montigny J., File No. IMM- 12628-12) 241 A.C.W.S. (3d) 188. Industrial and Intellectual Property PATENTS Applicant did not hold any patents and did not enjoy special patent rights Applicant manufactured ge- neric pharmaceuticals and was wholly owned subsidiary of company that owned patents. Board found applicant came within definition of "patentee" under Patent Act (Can.), and was subject to board oversight in respect of patented medi- cines and obligated to comply with Act and Regulations and file information that would al- low board to determine whether it was charging excessive prices for medicines. Application for judicial review of board's deci- sion. Application granted. Rel- evant provisions were enacted out of concern patent holders could take undue advantage of monopolies to detriment of consumers. Applicant did not hold any patents and did not en- joy special patent rights. Appli- cant only entered market with parent's authority once parent had already lost its exclusiv- ity so did not enjoy monopoly. Board failed to consider French version of Act defined patentee narrowly and close to rights of patent holder. Constitutionality of legislation depended on close connection to patent protec- tion, which fell under Federal jurisdiction, and potential un- due exploitation by monopolies. Considering all facts, board's conclusion was unreasonable. Amendments to Act that gave board control over prices of patented medicine did not al- ter basic purpose of legislation or expand board's mandate so provisions themselves remained constitutional. Matter remitted back with direction board find applicant was not patentee. Sandoz Canada Inc. v. Canada (Attorney General) (May. 27, 2014, F.C., James W. O'Reilly J., File No. T-1616-12) 241 A.C.W.S. (3d) 107. ONTARIO CRIMINAL DECISIONS Charter of Rights RIGHT TO COUNSEL Trial judge relied on evidence which was not admissible Accused appealed conviction for "over 80". After hearing screeching sounds of tires and sound of car hitting something, officer arrived at scene 30 to 60 seconds later and saw that ve- hicle had hit pole. Officer saw woman and two males stand- ing around outside of vehicle. Males told officer that they had arrived after accident and had not seen who was driving vehicle. Officer overheard ac- cused tell two males that she was "okay". Accused testified on Charter application that, prior to being advised of her rights and being provided cau- tion, she was asked by officer whether she was driving and that she admitted to driving because she felt compelled to do so. Accused was arrested for impaired driving. During Charter submissions, Crown conceded that officer breached accused's Charter rights and that her statements were in- admissible at trial. At trial, only evidence available to trial judge as to whether Crown had proven charges beyond reasonable doubt was officer's evidence. Trial judge con- cluded that when someone was asked whether they were okay, not being driver was very un- usual phenomenon. Trial judge stated that accused admitted to casELaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. 2015 BRITISH COLUMBIA LEGAL TELEPHONE DIRECTORY 4QJSBMCPVOEȕ0DUPCFS ȕ- .VMUJQMFDPQZEJTDPVOUTBWBJMBCMF 1MVTBQQMJDBCMFUBYFTBOETIJQQJOHIBOEMJOH 1SJDFTTVCKFDUUPDIBOHFXJUIPVUOPUJDF THIS IS YOUR LEGAL COMMUNITY. 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